THE CROSS EXAMINATION AND ROLE OF COURTS A ... A K A Rahmaan THE CROSS...examination affidavit with errors may be permitted to be replaced, and this cannot be a routine practice. The

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THE CROSS EXAMINATION AND ROLE OF COURTS – A REVIEW

A.K.A. Rahmaan, B.A., LL.M., P.G.D.F.D.R.,

Principal Judge, Principal Family Court, Chennai.

INTRODUCTION:

The word “cross examination” plays a predominant role in Courts. In a trial of

Sessions case, or a Civil Case including the Motor Accidents Claims Cases, the cross

examination of a witness is considered as the major element in a trial. The real test for

a trial Judge is that of handling the case during cross examination of a witness. The

procedure of recording the evidence of a witness in chief in respect of civil cases was

made easier by virtue of the amendment to the Code of Civil Procedure. After

amendment in the year 2002, the scope of recording the evidence in chief was

permitted to be done by way of affidavit. Hence the long time consumption of Civil

Courts was considerably reduced by virtue of filing of proof affidavit. However this

has enabled the deponent to elaborate his case to the maximum. Thus the affidavit

runs to several pages, which is evident in many cases.

As a matter of right, the defendant/respondent takes up each and every line

of the affidavit and makes his cross examination at length. It has also become the

order of the day that the evidence during cross examination is being done in piece

meal. The major issue revolving around this kind of practice of piece meal cross is

that of the repetition of the same questions at the cost of Court’s time. Hence the

Presiding Officer of the Court shall have to be very vigilant and should be capable

DISCLAIMER

This article, with the contents, as received from the author, is published.

The views and opinions expressed by the author in this article are

his/her own and are not that of the Tamil Nadu State Judicial Academy.

It is imperative that the readers verify the contents of the article with

other relevant and authorised sources of information.

of remembering or recollecting the evidence recorded during the previous

occasion. The responsibility is equally vested with the deponent and his counsel to

alert the Court during such instance. This process consumes extra time during cross

examination resulting in delay. While the piece meal cross examinations is one of

the reasons for delay in trial, the inability or ill health of the deponent to retain

himself/herself for long hours makes him/her difficult resulting in pleading

adjournment at a particular stage of cross examination again reflects in piece meal

trial. Again the challenge is posed on the Presiding Officer to identify whether the

deponent is really ill or is he attempting to drag on the issue.

As far as Sessions cases/Criminal Cases are concerned, there is no question

of pleadings so that the cross examination could be confined to a specific defence.

Hence the accused takes the maximum of all the defences, which he/she thinks

available to him/her. Hence it becomes a great ordeal to the trial Judge while

recording the evidence of witnesses in Sessions cases/Criminal Cases during cross

examination.

While the Judge is expected to be very active while recording the evidence,

he/she has to face the sudden confrontation in respect of admissibility of the

questions put to the witnesses. By and large it is expected that the Judge shall be a

silent spectator thereby allowing all the unwarranted questions be put to the

witness. More often the questions, which mutually crush the defence of the party

concerned are put to the witnesses. In short, the real objective of eliciting the truth

during cross examination is totally missed and the parties are on to a different

track/version which they themselves would not expect. Hence an attempt is made

through this article to analyze the importance of cross examination and the factors

affecting the Justice Delivery System.

IMPORTANT ELEMENTS IN CHIEF AND CROSS EXAMINATION:

a) CONTENTS OF AN AFFIDAVIT IN CHIEF:

The evidence in chief shall be on par with the pleadings. It cannot be in the

form of arguments or submissions. In this regard a decision is reported in H arish

Loyalka And Another vs Dileep Nevatia And Others on 7 April, 2014,1 Bombay

High Court, wherein it has been observed as follows;

“The provisions of Order 18 Rule 4 of the Code of Civil Procedure,

1908 (“CPC”) require that the “examination in chief” shall be on affidavit. This

means that the affidavit in lieu of examination in chief can contain, and contain

only, such material as is properly admissible in examination in chief, in a

manner no different than if the witness was in the witness box and his direct

evidence was being taken by his advocate. An affidavit that contain arguments

and submissions is neither an affidavit within the meaning of CPC Order 19,

Rule 3, nor an affidavit in lieu of examination in chief within the meaning of

CPC Order 18, Rule 4”

Further it has been reiterated in the above decision that, the chief

examination affidavit with errors may be permitted to be replaced, and this cannot

be a routine practice. The prime reason asserted is that the Court has no power to

alter or delete certain portions in the affidavit in chief. The relevant portions are

extracted as follows;

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“How should a court approach such a non-conforming affidavit, i.e., one

that contains material that is clearly inadmissible or demonstrably irrelevant?

A party may, in a given case, be permitted to replace his affidavit with one

that conforms. It is not in every case that a party is required to attest to the

correctness of the contents of that affidavit, as the Supreme Court has held in,

Rasiklal Manikchand Dhariwal V Mss Food Products 2. But where an affidavit

contains material that, even had the witness attested to it, could not have

formed part of his ‘testimony’ properly so-called, it would plainly defeat the

interest of expedition to prevent a party from substituting that affidavit with

one that meets the rigour of CPC Order 18 Rule 4. Of course, this does not

mean that a party should be continually permitted to ‘test the waters’ by

filing one non-conforming affidavit after the other. Replacing such an

affidavit must, surely, be in a court’s discretion. On the footing that a court’s

power to ‘delete’ any portion of an evidence affidavit (even portions that are

inadmissible) is completely taken away, a court may still rule on portions of

the affidavit to which objections are taken and direct that those portions be

excluded from consideration as testimony; i.e., that a cross-examiner will be

at liberty to ignore those portions without fear of an adverse inference being

drawn”

Hence the Courts, while recording the evidence in chief by way of affidavit

shall have to afford time to the other party to peruse the averments in the chief

affidavit, enabling him to raise his objections at the time of cross examination. 2 2012 2 SCC 196


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b) RECALL OF WITNESSES:

The Provisions of Order 18 Rules 1 and 2 of Civil Procedure Code envisage

the order of examination of witnesses and the right to begin. The witness can be

examined in chief by way of his affidavit and he can be cross examined. After

completion of cross examination, if any aspect to be clarified or ambiguity to be

ruled out, the witness may be subjected to re-examination. But this cannot be done

by way of Additional affidavit, as it is no where contemplated under the above

procedure. The provisions cited above have to be followed Stricto Senso. Even if

certain left over documents are to be marked during re-examination, they cannot be

done by way additional affidavit and instead, the same might by elicited from the

witness

The recall of a witness cannot be made just to fill up the gap and to cover the

left over aspects. This has been reiterated by Honourable Supreme Court of India

in K.K. Velusamy v. N. Palanisamy3 wherein it has been held as;

"9. Order 18, Rule 17of the Code enables the court, at any stage of a suit, to

recall any witness who has been examined (subject to the law of evidence for the

time being in force) and put such questions to him as it thinks fit. The power to

recall any witness under Order 18, Rule 17can be exercised by the court either

on its own motion or on an application filed by any of the parties to the suit

requesting the court to exercise the said power. The power is discretionary and

should be used sparingly in 3 2011(2) R.C.R.(Civil) 875 : 2011(3) Recent Apex Judgments (R.A.J.) 83 : (2011) 11 SCC 275,

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appropriate cases to enable the court to clarify any doubts it may have in regard

to the evidence led by the parties. The said power is not intended to be used to fill

up omissions in the evidence of a witness who has already been examined. (Vide

Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate .)4

10. Order 18, Rule 17of the Code is not a provision intended to enable the

parties to recall any witnesses for their further examination-in-chief or cross-

examination or to place additional material or evidence which could not be

produced when the evidence was being recorded. Order 18, Rule 17 is

primarily a provision enabling the court to clarify any issue or doubt, by

recalling any witness either suo motu, or at the request of any party, so that

the court itself can put questions and elicit answers. Once a witness is recalled

for purposes of such clarification, it may, of course, permit the parties to

assist it by putting some questions."

This position has been re-iterated by the Honorable Supreme Court of India

in Ram Rati Vs. Mange Ram 5. Hence the Courts must be cautious while allowing

recall petitions, ensuring that the intention to recall was not to fill up the lacuna.

c) HARASSMENT OF WITNESSES:

There is no hard and fast rule in respect of the mode of putting the questions

to the witness in a Sessions Case. However it has to be ascertained that the cross 4 2009 4 SCC page 410 5 CDJ 2016 SC 216

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examination is not done to satisfy the accused to the extent of harassing the

witness. The Judges need to play a very proactive role while recording cross

examination of witnesses in Sessions Cases. A land mark Judgment of the

Honourable Division Bench of High Court of Madras, in Sampath Kumar and

other vs. State by Periyanaicken palayam P.S. 6

exposes the sorry state of affairs in Sessions Cases, where the witnesses are

subjected to harassment in the guise of cross examination. The relevant paragraphs

though appear to be lengthy, if read in between the lines, would certainly give an

alarming message to all the Judges who deal with Sessions Cases and who are

likely to deal with the Sessions cases. The relevant paragraphs alone are extracted

hereunder which would throw light to the present Judicial System.

“53. Above all, the conduct of the accused in this case is highly deplorable and

condemnable. The occurrence was in the year 2009. The case was pending

before the Court of Sessions from the year 2011 onwards. For four years, due to

non cooperation of the accused, charges could not be framed by the trial court.

The charges were framed by the trial court only on 29.01.2015. P.Ws.1 to 5 were

examined on 04.05.2015 and P.W.6 was examined on 05.05.2015. The records

received from the trial court would go to show that on the day of examination of

these witnesses, the counsel for A1 to A11 was not present. The counsel for A12

to A23 were present, but, he refused to cross examine the witnesses. Similarly,

the counsel for A24 to A27 also did not appear. On an application made, by

order dated 15.05.2015, P.W.1 was recalled and he was cross examined on

22.05.2015. 6 CDJ 2017 MHC 154

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The counsel for A12 to A23 cross examined him. The cross examination

commenced at 10.45 a.m. The learned counsel finished the cross examination at

01.30 p.m. which runs to 15 pages. After lunch break, the counsel for A24 to

A24 commenced the cross examination. It went up to 05.30 p.m. which runs to

12 pages. On that day, A1 to A11 did not cross examine P.W.1. They approached

the High Court and as per the orders of the High Court dated 18.08.2015, P.W.1

was again recalled on 27.08.2015. On that day, the learned counsel for A1 to

A11 cross examined him which runs to 16 pages. Thus, the cross examination of

these witnesses covers 45 pages. We have gone through the entire cross

examination, line by line and word by word. We are, at a loss to find anything

elicited in favour of the accused during cross examination though it runs to 45

pages. Many of the questions are in the nature of harassing the witnesses. It

reflected as though there is no law regulating the questions during cross

examination. It was ignored by the counsel that the Evidence Act speaks of

questions which are lawful during cross examination which could be compelled

to be answered by a witness and the questions which could be refused to be

answered by the witness. The learned counsel has also ignored when the

witnesses could be compelled by the court to answer and when the witnesses can

use his discretion to answer though there is no compulsion. The learned counsel

had overlooked these statutory mandates contained in the Evidence Act. The

learned counsel had virtually harassed P.W.1 for days together by asking all

irrelevant, unnecessary and scandalous questions.

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54. Similarly, P.W.2 had not implicated any of the accused in chief

examination and therefore, he was treated as hostile. But, she was not cross

examined by the defence on the same day. After chief examination on 4. 05.2015, he was recalled and cross examined by the counsel for A12 to A23

on 20.05.2015 and A23 to A27 on the same day. A perusal of the cross

examination of this witness would go to show that it is nothing but a

harassment. When he was recalled on 20.05.2015, the learned counsel for A1 to

A11 did not cross examine. On the day of examination in chief though the

counsel were present, they were not ready to cross examine him. On 08.09.2015,

pursuant to the orders of this court, P.W.2 was recalled and cross examined by

A1 to A11. This witness was again harassed and cross examined which runs to 8

pages. Most of the questions appear to be relevant relating to the fact in issue or

relevant fact. All unnecessary scandalous and harassing questions have been

asked to him. Similarly, P.W.3 was examined in chief on 04.05.2015 on which

date no counsel for the accused was ready to cross examine without assigning

any reason whatsoever. He was recalled and cross examined and again recalled

on the orders of this court and cross examined. This had happened in almost to

all the witnesses. When we invited the learned senior counsel appearing for the

accused to explain, as to how the counsel for the accused were justified to ignore

the ethics of the profession by refusing to cross examine any witness and to

recall them on a later date in a phased manner and to harass them by asking

such unnecessary questions, the learned senior counsel felt sad about it

reflecting his fairness. When we invited

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him to point out anything elicited during the cross examination of these

witnesses in favour of the accused, he was unable to point out anything. Thus, it

is crystal clear that most of the questions were in the nature of harassment to the

witnesses.

55. Gone are the days that the defence counsel would take trial proceedings so

seriously and cross examine the witnesses on the same day and also avoiding

unnecessary questions by extending fullest cooperation to the court for trial and

disposal of the cases. The case on hand is a classic illustration as to how there is

a complete change in the attitude of some of the counsel and as to how they take

it as a platform to harass the witnesses. We are really anguished by going

through the cross examination of the witnesses in this case. We do not

understand as to how the Judge was a silent spectator without making any

intervention when the witnesses were harassed like anything. The expression of

our anguish in this judgement is only to convey our hope to all concerned that

the justice delivery system cannot be taken for a ride by anyone. The time tested

system will withstand all such attempts in the war waged against the system by

unscrupulous people”

The above observations of Their Lordships happen to be an eye opener to

the stake holders, and especially to the Judicial Officers handling the Sessions

Cases. If this decision is given the letter and spirit effect, it could be ensured that

we have moved one step ahead in the positive direction in the Justice Delivery

System.

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d) NON DEVIATION FROM THE SCOPE OF DEFENCE:

The other vital aspect of recording evidence is to ensure that the ignorance

of law on the part of the advocate shall not result in grave injustice to the accused,

who, despite being innocent, shall be liable for conviction because of lack of

legal knowledge on the part of the advocate. In a typical way if it is to be

explained, the Lawyers appearing in Sessions Cases shall have to decide their

defence clearly and have to make a homework on the cross examination.

It could be seen from certain the cases, that the questions incriminating the

accused himself is put to the witness. In certain cases it is seen that the cross

examination questions are framed in such a way that they mutually crush the

defence of the accused, leaving a strong presumption against the accused.

The questions are put in the way of suggestions to the witness. While doing

so, the sight of the real defence is lost. Admittedly, the suggestive questions would

indicate the intention of the accused. Merely stating that it was just a suggestion,

the accused is giving a picture to the Court in respect of his defence. It cannot be

made whimsically, just like that for no good reason. Hence one should be very

careful while framing his suggestive questions to the witnesses, ensuring that those

questions do not pull out the legs of the accused. The suggestive questions should

be covering the defence and should hover around the defence and it shall

emphasize the defence of the accused.

Here are some instances which could be invariably found in depositions. The

exact deposition is not reciprocated here. The substance is put in the question and

answer form for a better understanding. In order to ensure privacy, the case details

are also not mentioned herein.

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CASE No. I (Cross of PW1, Victim in the offense u/s 376 IPC before Mahila Court)

Question:

Answer: (Thereafter the cross continues on several other aspects. While nearing the end of

cross examination, it’s very unfortunate that an incriminating question crushing the

above defence if put to the witness)

Answer: I deny Question: You are in the habit of riding bicycle. Is it not? Answer: No. Question: I put it to you that by virtue of your cycling habit, the doctor has

wrongly concluded that you are exposed. Answer: I deny. Question: I put it to you that you developed one sided love affair on the accused

and the accused was not interested in your proposal, and since the

accused possess vast lands, and other properties, in order to have a

wealthy groom, you and your family have falsely implicated the

I deny.

I put to you that you never had any acquaintance with the accused, and

that you maternal uncle had land dispute with the accused and that in

order to wreck vengeance on the accused, your maternal uncle has

instigated you to lodge a false complaint against the accused and now

then you are hereby before this Court deposing false evidence in

support of your false complaint.

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accused in this case and that the accused has not committed any

offence.

Answer: I stoutly deny.

The above mutual crushing of defence would certainly prejudice the

accused. How could the accused claim his knowledge on the habits of the victim,

and how could he plead one sided love affair, if he pleads that there was no

acquaintance with the victim is the core issue which has been mishandled. The

counsel has to stick on to any one side of the defence only. When this being the

circumstance, the Trial Judge can very well warn the Counsel and make him

restrict to his defence.

The Judges shall have to make a cursory glance of the cross examination

made by the counsel and shall have to closely follow up till the end of the cross

examination. This would certainly help the Judge in identifying such areas where

there are possibilities of miscarriage of justice on account of such wrong questions.

The idea behind is not to ensure acquittal of the accused and rather these are

emphasized on the sole point that even thousand accused might escape from the

clutches of law, but one innocent should not be punished on account of poor cross

examination by the counsel. These comments are very much confined to those

Lawyers who, without having proper guidance from their seniors are approaching

the Court.

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CASE No. II ( Offence u/s 489 IPC before Additional Sessions Court)

Here, PW1 is the Sub Inspector who conducted raid and seized the counterfeit

currency. Cross examination on PW1 is made as follows;

Question: I put it to you that you never arrested the accused nor seized any

counterfeit currency from him and he never was available at the place

indicated by you in your arrest card.

Answer: I deny

Question: You have secured the counterfeit notes from some other person and

made him to escape and nabbed this innocent accused.

Answer: I deny

Now the scientific expert is called as PW3 and cross examination is done as

follows;

Question: What type of analysis did you make to certify that the notes are

counterfeit.

Answer: The thickness of paper, the silver line in between, and the micro

engrossing of the Reserve Bank of India differ in the above notes with

that of the standard guidelines given by the RBI. (Witness explains in

detail)

Question: I put it to you that the notes verified by you are genuine, and

authenticated rupee notes and that you have not applied your mind in

verifying the notes properly and rather you have mentioned them to be

counterfeit notes in a mechanical way.

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Answer: I deny.

The sum and substance of the above question certainly crushes the defence

of the accused. When the first suggestion to PW1 was that the accused was not at

all present at the scene of occurrence, and that when it is pleaded that nothing was

recovered from the accused, then what would be the necessity to cross examine the

expert remains unexplained by the defence. Using what soever method(s), the

rupee notes might have been testified by the expert, and whatsoever the technique

is used by the expert, how does it affect the accused also remain unexplained.

While denying the mode and technique of examination of currency notes, the

accused is attempting to crush his defence by impliedly admitting his knowledge to

the seizure of currency notes.

The approach to hostile witnesses is also a yet another concern. The

witnesses are to be cross examined by the Public Prosecutor touching upon the

substance in the statements recorded u/s 161(3) Cr.P.C. Without putting the

questions touching upon the elements of the substance found u/s 161(3) Cr.P.C.,

the mechanical recording of evidence in cross by simply reciprocating the

statement u/s 161(3) Cr.P.C. would be improper.

e) PIECE MEAL CROSS EXAMINATION:

The practice of piece meal cross has been condemned by the Honourable

Supreme Court of India in Vinoth Kumar Vs State of Punjab 7, where in the Trial

Court Judges who are handling the Sessions cases are given with strict guidelines

to be followed while examining the witnesses and that the cross

7 CDJ 2015 SC 11


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examination of the witness shall be completed on the same day. At the most, for

want of time, the cross examination could be extended to the next day. The above

Judgment has been circulated to all the Judicial Officers across the country. The

key portion in paragraph 41 of the above Judgment alone is extracted hereunder

which would speak in volumes.

“The trial courts are expected in law to follow the command of the

procedure relating to trial and not yield to the request of the counsel to grant

adjournment for non-acceptable reasons. In fact, it is not all appreciable to call

a witness for cross-examination after such along span of time. It is imperative if

the examination-in-chief is over, the cross-examination should be completed on

the same day. If the examination of a witness continues till late hours the trial

can be adjourned to the next day for cross-examination. It is inconceivable in

law that the cross-examination should be deferred for such a long time. It is

anathema to the concept of proper and fair trial. The duty of the court is to see

that not only the interest of the accused as per law is protected but also the

societal and collective interest is safe-guarded. It is distressing to note that

despite series of judgments of this Court, the habit of granting adjournment,

really an ailment, continues. How long shall we say, “Awake Arise”. There is a

constant discomfort. Therefore, we think it appropriate that the copies of the

judgment be sent to the learned Chief Justices of all the High Courts for

circulating the same among the learned trial Judges with a command to follow

the principles relating to trial in a requisite manner and not to defer the cross-

examination of a witness at their pleasure or at the leisure of the

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defence counsel, for it eventually makes the trial an apology for trial and

compels the whole society to suffer chicanery. Let it be remembered that law

cannot allowed to be lonely; a destitute.”

The important duty cast upon the Trial Judges is to ensure that there is no

miscarriage of Justice on account of unnecessary adjournments. The above

Judgment is a salute to the Justice Delivery System, which the Judicial Officers

shall have to follow in it’s true sense.

f) UNWARRANTED APPROACH:

The Rules laid down in the Tamil Nadu Motor Accident Claims Tribunal

Rules emphasize the conduct of trial in a motor accident claim by following

summary procedure. This is evidenced on a conjoint reading of the provisions of

Section 140, 165, 166 and 168 of the Motor Vehicles Act. But this has not been

given a practical approach so far. The witnesses are subjected to cross examination

at length which is totally unwarranted.

In cases of violation of the terms of Insurance Policy, wherein the driver has

operated the vehicle without license or without badge, the agony of the witnesses

go high as the witnesses are grilled to the maximum only to satisfy the Insurance

Companies. This cannot be done at the cost of the precious Court Time.

The petitioner makes his claim against the Owner of the Vehicle and the

Insurer of the Vehicle. In case when the driver of the vehicle had no valid driving

license, the terms of Insurance Policy is said to have been violated. Hence the

Insurance companies tend to exonerate themselves from the liability. However the

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Hon’ble Supreme Court of India in the case of Oriental Insurance Company

Limited Vs Nanjappan and others 8 has emphasized that even in case of violation

of the terms of the Insurance Policy, the payment of compensation to the claimant

shall have to be made by the Insurance Company initially and thereafter the

Insurance company shall have to recover the same from the owner of the vehicle. “8. Therefore, while setting aside the judgment of the High Court we direct in

terms of what has been stated in Baljit Kaur's case (supra) that the insurer shall

pay the quantum of compensation fixed by the Tribunal, about which there was

no dispute raised, to the respondent-claimants within three months from today.

For the purpose of recovering the same from the insured, the insurer shall not

be required to file a suit. It may initiate a proceeding before the concerned

Executing Court as if the dispute between the insurer and the owner was the

subject matter of determination before the Tribunal and the issue is decided

against the owner and in favour of the insurer. Before release of the amount to

the insured, owner of the vehicle shall be issued a notice and he shall be

required to furnish security for the entire amount, which the insurer will pay to

the claimants. The offending vehicle shall be attached, as a part of the security.

If necessity arises the Executing court shall, take assistance of the concerned

Regional Transport authority. The Executing Court shall pass appropriate

orders in accordance with law as to the manner in which the insured, owner of

the vehicle shall make payment to the insurer. In case there is any default it

shall be open to 8 2004 13 SCC 224


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the Executing court to direct realization by disposal of the securities to be

furnished or from any other property or properties of the owner of the vehicle,

the insured. The appeal is disposed of in the aforesaid terms, with no order as to

costs.”

Based on the above decision, there are a series of decisions from The

Honorable Supreme Court of India and also from various Honorable High Courts.

When this being the settled position, the petitioner need not pay his attention to the

fact whether the driver of the vehicle had valid driving license or not. In a case

where the driver had no driving license or valid driving license, the owner of the

vehicle who is cited as the first respondent might not contest the case and rather he

would allow the decree to be passed in his absence. He would approach the Court

at a later point of time to set aside the decree, when the award is about to be

executed on him by the Insurance companies.

In the mean time, during the trial proceedings, when the Insurer pleads the

non availability of driving license of the driver of the offending vehicle and

examines his witness, the petitioner tends to cross examine the witness and makes

an attempt to prove that there was valid driving license for the driver of the

vehicle.

It is quiet surprising to note that the petitioner steps in to the shoes of the

owner of the vehicle and takes up his defence and attempts to prove that the driver

of the offending vehicle had driving license and puts questions to the witness such

that the Regional Transport Officer has not made proper verification.

When a witness from either the Insurance Company’s side or from the

Transport Authorities is examined by the Insurance Company, it is done only to

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safeguard the interest of such Insurance company. Only if such examination is

made and proved that there was a violation of Insurance Policy on account of

either non availability of Driving License or Invalid Driving License, the Insurance

Company could proceed against the owner of the offending vehicle for recovery by

way of execution petition.

The above stand of the Insurance Company is totally misunderstood by the

petitioner and he tends to cross examine the witnesses on the Insurance Company’s

side and tries to emphasize that the driver had valid driving license. This is totally

unwarranted and it is nothing but the waste of time of Court. The Trial Judges can

very well curtail this practice which would definitely save time of the Court.

g) SUBSTANTIATING ESTOPPEL – WHETHER ESSENTIAL IN

CROSS EXAMINATION?

It is also invariably seen during trials that the witnesses are cross examined

at length. The real objective of cross examination is to elicit the truth. It is not a

tongue twister play or a test of talent for the witness. At times, there might be some

falsehood apparently evidenced from the statement of the witness. This falsehood

could be evinced very well when the witness gives an answer to a question at the

beginning of the cross examination and contradicts himself at a later part by giving

a different answer to the same question. The Trial Judges should be much more

alert in avoiding the repetition of questions. However, when an indirect question

resembling the earlier question is put to the witness, the Trial Judges might not be

able to have much vigil on that aspect.

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However when a question is put to the witness and an answer is obtained,

when the witness tends to give a different answer at a later point of time during

cross examination, the counsel should make a safe play by stopping at this point

itself. Thus the evidence gives an inference to the Court that the witness has

stopped from his previous stand which could be challenged in the arguments. But

unfortunately, having lost sight to this aspect, the witness is asked further more in

respect of his previous statements and both his answers are compared and an

attempt is made to make the witness agree that he has not come out with truth.

In such cases there is possibility for the witness to bring about a new answer,

which crushes the two earlier answers. Might be the witness would not posses that

much of IQ to withstand the cross examination. Even in genuine cases too, the

witness tumble to such questions and the burden cast on the Court goes very high,

as the credibility of the witness becomes the first issue to be decided, before going

into the merits of the case. In simple words, all these would result in loss of time to

the Court which could be very well avoided.

The eliciting of a fact from the witness and his subsequent contradictory

answer is certainly an estoppel on the part of the witness, and the witness is es-

topped from making a contradictory answer. The doctrine of estoppel play an

important role in deciding the credibility of the witness. But this has to be

substantiated only during arguments and not by further cross examination. Hence

the cross examination on the point of estoppel in evidence becomes unwarranted

totally.

22

h) OBJECTIONS RAISED DURING CROSS EXAMINATION:

It is one of the very vital areas to be addressed. It could be seen invariably in

many of the trials in civil cases, that objections to certain questions put to the

witness are raised during cross examination. Equally it is to be noted that without

answering to such objections, the trial is proceeded by mechanically recording that

“RECORDED WITH OBJECTION”. This is improper. The provisions of Order

18 Rule 11 of The Code of Civil Procedure is lost sight during recording of

evidence. The provisions of Order 18 Rule 11 are extracted hereunder;

ORDER 18 RULE 11: QUESTIONS OBJECTED TO AND ALLOWED

BY COURT:

Where any question to a witness is objected to by a party or his pleader,

and the Court allows the same to be put, the Judge shall take down the question,

the answer, the objection and the name of the person making it, together with

the decision of the Court thereon.

Hence it is mandatory on the part of the Judges to follow the above

provision and to record the reasons in the deposition itself as to the reasons for

overruling such objections. This is because, when a Judge ceases his office either

by retirement, transfer or death and when the next Judge takes up the office, he

could have no idea of what did it meant or what was intended by recording as

“RECORDED WITH OBJECTION”. This is also an area where miscarriage of

justice occurs when the real sense of objections and the reasons for allowing or

disallowing are not recorded.

23

i) RE-EXAMINATION OF WITNESS:

The provisions of Order 18 Rule 4 (2) of the Code of Civil Procedure,

envisage the sequence of recording of evidence. It clearly lays down that the party

commencing the evidence shall have to be examined in Chief by way of affidavit

and the cross examination and re-examination shall have to be taken down by the

Court or by the Commissioner appointed for such purpose by the Court. The cross

examination and re examination of the witness has to be taken down by the Court

as how deposed by the deponent.

It is ironical to note in many Districts, that the procedure of filing additional

affidavit for chief examination is made, which is totally inconsistent with the

provisions of Order 18 Rule 4 (2) of The Code of Civil Procedure. The above

procedure shall be exercised with fullest caution by the Trial Judges. The

procedure of recording of evidence during re-examination shall have to be

recorded directly by the trial judge , according to the provisions of Order 18 Rule 4

(2) of the Code of Civil Procedure which is extracted hereunder.

ORDER 18 RULE 4 (2):

“The evidence (cross-examination and re-examination) of the witness in

attendance, whose evidence (examination in – chief) by affidavit has been

furnished to the Court shall be taken either by the Court or by the

Commissioner appointed by it;”

Thus when the provision itself is clear, the procedure of re-examination by

affidavits shall not be entertained by the Trial Judges and instead the evidence

during re-examination or rebuttal evidence shall have to be taken down by the

Courts directly.

24

j) SOME PRECAUTIONS TO TRIAL JUDGES:

The term demeanor of witness refers to the non-verbal cues given by a

witness while testifying, including voice tone, facial expressions, body language

and other cues such as the manner of testifying and the witnesses’ attitude.

Demeanor of witnesses in both Civil and Criminal Laws are

enunciated as follows;

CODE OF CIVIL PROCEDURE:

ORDER 18 RULE 12 CPC: Remarks on demeanour of Witnesses:

“ The Court may record such remarks as it thinks material respecting

the demeanor of any witness while under examination”

CRIMINAL PROCEDURE CODE:

SECTION 280: Remarks respecting demeanour of witness:

“ When a presiding Judge or Magistrate has recorded the evidence of

a witness, he shall also record such remarks (if any) as he thinks material

respecting the demeanour of such witness whilst under examination”

Thus in both Civil and Criminal cases when a Judge finds that the answers

given by the witness are evasive and not straightforward, it is his duty to record the

evidence of that witness in the form of questions and answers so as to bring on the

record sufficient material for the appellate Court to form it’s own opinion as to the

demeanor of the witness whilst under examination. The above observation was held

in Amar Singh Bakhtawar Singh vs The State 9on 17 June, 1954. Rule 12 of Order

18, Civil P. C., provides that the Court may record such remarks as it thinks 9 AIR 1954 P H 282


25

material respecting the demeanor of any witness while under examination. An

advocate commissioner can also record the demeanor as per the amended Civil

procedure Code as held in Salem Advocate Bar Association vs Union Of India.10

Certain Factors that needs to be considered by a Court to determine

a witnesses' credibility such as Do's and Don'ts are enumerated below:

Do's

Court shall note the capacity of a witness to perceive, recollect, or

communicate;

Shall note the nature of bias or interest of the witness.

Shall note the prior statements that are consistent or inconsistent

with the testimony

Shall note the admission of untruthfulness.

Must be noted in the presence of the witness and counsel for both

the parties in question-answer form.

Shall be recorded at the time of recording the evidence itself under

what context and circumstances and with reference to the type of

question posed to him, so that, the appellate court while

appreciating his evidence could note about it as it had no

opportunity like the trial court to note the demeanour of witness.

10 AIR 2005 SC 3353

https://indiankanoon.org/doc/342197/

26

It has been held in R.Palanisamy vs State By Inspector Of Police.11 that , “

In the absence of the trial court's recording in the deposition itself about the

nature of his demeanor, if such a comment is made while appreciating the

evidence of a witness, it is nothing but an exercise in air. This will not be

judicial way of appreciating the quality of the evidence of a witness.”

Don'ts

Courts not bound to note the demeanour upon demand by the defense.

Trial Court should not record the impressions left on the mind of a judge by

a witness such as, appearing uncomfortable, hesitant, nervous, hollow

insincere, avoiding to tell the truth, and a witness answering questions

confidently in an unruffled, straightforward manner giving the true ring.' '

The impressions are bound to fade with the passage of time especially

when a judge is busy noting the demeanor of witnesses day after day in

our other cases. And these become utterly useless in a piecemeal trial

spread over a long period of time where various judges come to record the

evidence and the judge deciding the case, perhaps, having no advantage

of looking at the demeanour of witnesses. 'This has been held

in Kishan Lal Gupta vs Dujodwala Industries And Ors.12 on 19

February, 1976.

Trial Judges should not be carried away by emotions

11 Unreported judgment dated 23 April, 2013,MHC 12 ILR 1976 Delhi 442


27

Trial Judges have to ensure the neutrality and shall not evince any

interest and prompt questions to the defense.

Confession statement of the accused shall not be marked during the

Investigating Officer’s Evidence. At the most, the admissible portions of

confession statement could be marked after the admission of the

witnesses to the confession theory.

CONCLUSION:

The examination of witnesses in chief is made simpler. However the cross

examination of a witness becomes the real test for the Trial Judge. It is expected

from the Trial Judge to follow the provisions of section 165 of The Evidence Act,

which gives enormous powers to the Trial Judge so as to keep the proceedings

under the control of the Court. The trial judge should understand that the noting

the demeanor is to assess the truthfulness or believability of a witness's

testimonial statement offered in a judicial proceeding to prove or disprove a

disputed issue of fact. It is also imperative to point out that the litigant cannot

take shelter on his ignorance of Law. It would be very much appropriate to quote

the Legal Maxim “Ignorantia facti excusat, ignorantia juris non excusat” which

clearly contemplates that ignorance of a fact can be excused, but not the ignorance

of Law.

The Courts of Justice should be cautious in rendering justice to the litigants.

Though the Judges exercise their discretion based on the facts and circumstances

of each and every case, and though they adhere to their own wisdom, it also shall

be imperative on the Judges to warn the litigants of the consequences of their

28

wrongful approach towards Law, which may result in miscarriage of justice. At the

same time, the responsibility of a litigant who approaches the Court is also much

more. The litigant shall have to be due diligent and shall have a careful approach

towards the relief sought by him. The Legal Maxim “Vigilantibus non

dormientibus jura subvenient” reminds the responsibility of the litigants. The

Courts of Justice require the parties to the litigation shall exercise due vigilance

and caution. The above maxim means that Law would help those who are vigilant

and would not help those who are asleep over their rights. The duty is cast on all

the stake holders to ensure that there is instance of miscarriage of Justice and also

shall ensure that the Justice Delivery System is properly approached.

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